American Legion and the Establishment Clause

Last month, the Supreme Court agreed to consider an important Establishment Clause case from Maryland, The American Legion v. American Humanist Association. The case, which presents a challenge to a Maryland cemetery's use of a 40-foot cross as a public war memorial, gives the Court a chance to clarify its views on the constitutionality of state-sponsored religious displays. In particular, the case provides an opportunity for the Court to do away with the so-called “endorsement test,” which holds that a display violates the Constitution if a hypothetical, reasonable observer would see it as an endorsement of religion. Conservatives have criticized the endorsement test for decades, and with a new majority on the Court, they may finally have the votes to discard it. American Legion could turn out to be one of the most significant Establishment Clause cases in a long time.

The case involves the Peace Cross, a World War I memorial located in Veterans’ Memorial Park in Prince George’s County, outside Washington, D.C. Erected 90 years ago by the American Legion, the memorial consists of a large Celtic cross of white stone, with the Legion’s logo at the center of both faces. The base has a plaque bearing the names of 49 county residents who died in World War I, along with inscriptions extolling the martial virtues of “Valor,” “Endurance,” “Courage,” and “Devotion,” as well as a quote from Woodrow Wilson. An American flag flies nearby.

The cross is among a number of memorials in the park, though it sits more or less by itself at a busy intersection, 200 feet from the nearest monument. Over the years, the cross has been the site of numerous Memorial and Veterans Day commemorations, with customary invocations and benedictions. In 1931, apparently two or three Christian worship services took place at the cross, though the parties dispute that. Because of traffic safety concerns, the State of Maryland took title to the cross in 1961, and has spent a total of $122,000 maintaining it since that time.

A few years ago, some local residents and the American Humanist Association sued the state in federal court, arguing that the presence of the cross on public property constituted an establishment of religion in violation of the First Amendment. The district court dismissed the case, but last year a federal appeals court panel reversed and held, by a vote of 2-1, that the cross was unconstitutional. The appeals court opinion covered a lot of ground, but focused mainly on the endorsement test. Applying that test, the appeals court concluded that a reasonable observer would see the cross as an official endorsement of Christianity.

The appeals court reasoned as follows. First, the cross is universally recognized as a Christian symbol. True, white stone crosses like the Peace Cross are associated with the graves of American soldiers in foreign cemeteries. But this association does not negate the Christian meaning—far from it. People mark graves with crosses, the court insisted, to suggest Christian sacrifice and the hope of resurrection. Moreover, the court said, unlike other displays courts have upheld—the Ten Commandments monuments that adorn many courthouses, for example—display of the cross could not be seen as a historical practice without deep religious meaning. Finally, the size and physical setting of the Peace Cross suggested an official endorsement of Christianity: the cross was large and set apart from other monuments; it stood by itself, without surrounding displays that might negate the religious message. The secular, memorial inscriptions at the base were difficult to read; people driving through the busy intersection might not even notice them.

The Supreme Court will now consider the case. Its prior decisions on the constitutionality of religious displays are indeterminate, to put it charitably. The Court has not even settled on a definitive test. The endorsement test first appeared in a concurring opinion by Justice Sandra Day O’Connor in 1984, in a case called Lynch v. Donnelly, which involved the display of Christmas decorations. The test is meant to capture an important principle in a religiously pluralist society: The state cannot be seen as favoring one sect over another. Official endorsement of one sect could create strife by sending, in O’Connor’s words, “a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.”

Nonetheless, the endorsement test presents two major difficulties. First, it ignores centuries of American tradition, which countenances many religious displays on public property—including not only Ten Commandments monuments and Christmas decorations, but also the ubiquitous National Motto, “In God We Trust.” If the Court took the test seriously, it would invalidate these displays and remove religion from the public space—which the Establishment Clause cannot seriously contemplate. Second, the test requires close attention to the details of particular displays, since the details can change the nature of message conveyed. But this makes the test very unpredictable. How many candy canes are necessary before a Christmas tree becomes a secular, rather than a religious, symbol? How tall may a memorial cross be without becoming an endorsement of Christianity?

There are indications that the Court sees American Legion as an opportunity to jettison the endorsement test once and for all. One question the Court has agreed to hear is whether the constitutionality of the Peace Cross should be analyzed under a different test, from the 2014 case Town of Greece v. Galloway. In Town of Greece, the Court ruled that the practice of legislative prayer does not violate the Establishment Clause, even if the prayers are explicitly Christian, as long as the prayers are not coercive or systematically proselytizing. Legislative prayer, the Court explained, is a longstanding American tradition, valued by many of our fellow citizens; and longstanding tradition must inform judgments about the meaning of the Establishment Clause.

Whether the Court will move to a test that evaluates religious displays on the basis of longstanding tradition remains to be seen. People have predicted the end of the endorsement test before, only to be surprised at its survival. But American Legion creates a chance for the Court to restore predictability and common sense to its Establishment Clause jurisprudence. Stay tuned.